Glenn Grant, acting administrative director of the New Jersey Courts, testifies before the New Jersey Senate Budget Committee. Photo: Carmen Natale/ALM

The state judiciary is trumpeting the success of its remote grand jury pilot program, but critics of the idea remain dubious.

Indictments have been returned in 49 cases in Bergen and Mercer counties since the pilot program started June 18, and the program has allowed stalled criminal cases to proceed without filling courthouses with jurors, the Administrative Office of the Courts said in an announcement Friday.

The remote grand jury pilot program eliminates the need to exclude members of groups considered at heightened risk for contracting COVID-19, who would be reluctant to travel to courthouses for legitimate reasons, acting Administrative Director of the Courts Glenn Grant said in a statement.

"If we could safely accommodate hundreds of grand jurors at our courthouses while tending to other emergent needs, we would do so," Grant said. "The reality is we do not have the space to keep large numbers of grand jurors socially distanced throughout our facilities during this health crisis."

The virtual grand jury program was created by the judiciary as a way to help move cases that have been stalled since March when in-person court proceedings stopped due to COVID-19. Jurors follow proceedings on a computer or tablet and headphones from home, connected by videoconferencing app Zoom.

To protect the security and secrecy of the hearings, the standard grand jury charge and secrecy oath are supplemented with an oath addressing the requirements of participation in a virtual proceeding.

But the remote grand jury program has drawn considerable opposition from lawyers, and those concerns remain even as the pilot program has developed a track record. The pilot program was first announced as optional, with parties allowed to opt out if they object to remote proceedings. But the level of opposition prompted court officials to eliminate the opt-out provision. 

The Office of the Public Defender is concerned that not all of those whose cases have been heard by remote juries have been people who were held in custody while they await indictments, said Jennifer Sellitti, a deputy public defender and spokeswoman for the office.

"When we realized the pilot project was happening without our consent, we said as long as it's happening, we want to make sure the people indicted are people in custody. If you're going to do it, the whole point is to move cases along. People that should take priority are people that are being held," Sellitti said.

Judiciary spokesman Pete McAleer said defendants detained pre-indictment will be prioritized.  "For purposes of the pilot program, we deliberately started with simple and straightforward cases and did not require that defendants be detained," he said.

The Office of the Public Defender remains concerned about whether participants in the pilot program, including witnesses and jurors, are distracted by cellphones or other people in the room with them, Sellitti said.

In addition, an organization representing the state's 21 county prosecutors issued a statement this week opposing the remote grand jury project. The prosecutors said virtual grand juries are a "constitutional mistake." The County Prosecutors Association of New Jersey said that the pilot program is premised on three faulty assumptions—that all grand jurors will have equal access to technology; that grand jurors will have a confidential, private space in their home where they can participate in proceedings; and that the technology is trouble-free.

The prosecutors' group said its proposal to conduct socially distanced grand juries was summarily dismissed by the AOC. The prosecutors said they remain in favor of moving grand juries to larger courtrooms, or theaters or school auditoriums, where social distancing can be readily accomplished.

"This same process has been successfully adopted in some federal court jurisdictions and other states, including Oregon and Texas. The Supreme Court need not develop such a challenging digital plan when there is a simple analog solution," the prosecutors' group said.

A Hackensack criminal defense lawyer, Alan Peyrouton, likewise has concerns about lack of confidentiality when grand juries are conducted online.

"Just because a grand juror is logged on under a unique account does not prevent another person from seeing their screen, or worse, using their mobile phone to record the grand juror's PC or laptop. The witness may be an undercover narcotics detective who risks his life every day and just happens to appear on the screen of a grand juror who is in contact with a very drug dealer that the detective is testifying against. Regardless of the oath taken, a grand juror has no way of preventing who sees or walks past their screen," Peyrouton said.

The AOC's Grant calls the 48,757 virtual court events the state's courts have held to date, with 470,085 participants a success.

"We have used virtual technology with great success in a variety of settings, including pretrial conferences, bench trials and Supreme Court arguments," Grant said. "Virtual grand juries are not an ideal solution, but these are not ideal times. Given that we have no way of knowing when this health crisis will end, virtual grand juries are our best alternative if we are to move cases forward in a manner that allows all citizens to participate in the jury process. Justice cannot be served if the criminal justice process is stalled."